(2013) 301 KLR 285 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934

OP(KAT).No. 1073 of 2013 (Z)

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AGAINST THE ORDER/JUDGMENT IN OA.498/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 12-12-2012

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PETITIONER(S) :

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1. R.SHABU, ATTENDANT, AGED 44 YEARS VETERINARY HOSPITAL KANJIRAMKULAM NOW WORKING AT VETERINARY DISPENSARY KARODE, THIRUVANANTHAPURAM

2. R.SUKUMARAN, ATTENDENT, VETERINARY POLY CLINIC NOW WORKING AT REGIONAL POULTRY FARM KUDAPPANAKKUNNU, THIRUVANANTHAPURAM.

BY ADV. SRI.D.KISHORE

RESPONDENT(S) :

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1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT AGRICULTURE (AHE) DEPARTMENT GOVERNMENT SECRETARIAT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.

2. THE DIRECTOR, DIRECTORATE OF ANIMARL HUSBANDARY, VIKAS BHAVAN THIRUVANANTHAPURAM - 695 001.

3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM - 695 001.

4. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE MALAPPURAM - 676 505.

5. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE KASARAGOD - 671 121.

6. MATHEW SAM, S/O.SAMUEL,, AGED 34 YEARS VETTIKAYAMUKALIOL HOUSE, PULAMON P.O., KOTTARAKKARA GENERAL SECRETARY ALL KERALA VOCATIONAL HIGHER SECONDARY EDUCATION CERTIFICATE HOLDERS ASSOCIATION 691 506.

BY SRI.NOBLE MATHEW, GOVERNMENT PLEADER BY SRI.P.C.SASIDHARAN, SC, KPSC

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 18-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

APPENDIX

PETITIONER(S)' EXHIBITS :

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1. EXHIBIT P1: COPY OF THE WRIT PETITION (CIVIL) 17064/2009.
2. EXHIBIT P2: COPY OF THE ORDER DATED 19/06/2009 IN WPC 17064/2009 OF THIS HONOURABLE COURT.
3. EXHIBIT P3: COPY OF THE AFFADIVIT AND PETITION FOR AMENDMENT.
4. EXHIBIT P4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WPC 17064/2009.
5. EXHIBIT P5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WPC 17064/2009.
6. EXHIBIT P6: COPY OF THE ORDER DATED 30/01/2013 IN TA 3168/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL
7. EXHIBIT P7: COPY OF THE ORDER 28/6/2012 IN TA 2667/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL
8. EXHIBIT P8: COPY OF THE ORDER DATED 12/12/2012 IN O.A 498/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL

RESPONDENT(S)' EXHIBITS :

NIL

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/TRUE COPY/ P.A.TO JUDGE AMV

THOTTATHIL B.RADHAKRISHNAN & B.KEMAL PASHA, JJ.

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O.P.(KAT) No.1073 of 2013 (Z)

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Dated this the 18th day of March, 2013.

Head Note:-

Service Law - Retrospective amendment to the Recruitment Rules - Absence of qualification - When a notification is issued by the P.S.C prescribing qualifications in terms of the Recruitment Rules that stood as on the date of the notification, that would attract aspirants for the posts - At least a group would have been excluded by truthfully keeping themselves away from applying, rather than taking a chance of making an application on the admitted situation of absence of qualification - there will be persons in the government service who would stand resultantly deprived of their opportunity - the feeder category for 'by transfer' appointment lies spread out to the different departments in Government - when the advertisement mentions a particular qualification, that has necessarily to be treated as governing the persons aspiring and within the field of choice.

J U D G M E N T

Thottathil B.Radhakrishnan, J.

As per Ext.P1 Recruitment Rules, a pass in V.H.S.E in Live Stock Management is the first among the two qualifications prescribed for being appointed as Live Stock Inspector Grade-II "by transfer". In the absence of such qualified persons, a pass in S.S.L.C or equivalent is the qualification. By an amendment, prescription of S.S.L.C was taken away. While matters stood so, P.S.C issued notification in the extra-ordinary gazette dated 27/3/2008 calling for applications for consideration for appointments, including "by transfer". The last date fixed for the application was 30/4/2008. The petitioners, who admittedly did not possess the qualification of V.H.S.E in Live Stock Management, applied. Their applications were rejected by the P.S.C. They came to this Court invoking the writ jurisdiction. They stated that the question whether S.S.L.C or equivalent should be re-introduced into the Rules, is a matter pending consideration with the Government. At the stage of admission, this Court exercised discretion and permitted them to participate in the test. That order categorically says that, in the normal course, such an interlocutory order would not have been issued. The learned single Judge reasoned to say that the pendency of the recommendation of the Director of Animal Husbandry for re-introduction of S.S.L.C as a qualification motivated that interlocutory order. Thereafter, that writ petition stood transferred to Kerala Administrative Tribunal on its constitution. In the meanwhile, the Government came out with an amendment introducing S.S.L.C retrospectively with effect from 27/03/2008, i.e., the date of the P.S.C notification. At the final hearing, before the Tribunal, the P.S.C took the stand that it would be impermissible to declare the results of the petitioners, who took the competitive examination on the basis of the interim order in the writ petition; because, they were persons who took a chance and applied and were found to be unqualified. It is not in dispute that they would continue to be unqualified but for the retrospective amendment re-introducing S.S.L.C as a qualification with effect from 27/03/2008. When a notification is issued by the P.S.C prescribing qualifications in terms of the Recruitment Rules that stood as on the date of the notification, that would attract aspirants for the posts. Therefore, if S.S.L.C was a qualification notified as the alternate qualification in the notification on 27/03/2008, there would have been a larger spectrum, market or zone, of competitors. We are not going by the numbers, but we are going by the principles that we can easily see that at least a group would have been excluded by truthfully keeping themselves away from applying, rather than taking a chance of making an application on the admitted situation of absence of qualification. Therefore, though the retrospective amendment to the Recruitment Rules would, technically, relate back to 27/03/2008, we can clearly envisage that there will be persons in the government service who would stand resultantly deprived of their opportunity. That cannot be ignored. We should also remember that the feeder category for 'by transfer' appointment lies spread out to the different departments in Government. Under such circumstances, the learned standing counsel for P.S.C is also justified in making reference to District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M.Tripura Sundari Devi [1990 (3) SCC 655] wherein the Apex Court has categorically stated that when the advertisement mentions a particular qualification, that has necessarily to be treated as governing the persons aspiring and within the field of choice. We, therefore, do not find any legal infirmity or jurisdictional error in the impugned decision of the Kerala Administrative Tribunal. The original petition fails.

In the result, this original petition is dismissed in limine.

sd/- (THOTTATHIL B.RADHAKRISHNAN, JUDGE)

sd/- (B.KEMAL PASHA, JUDGE)

AMV/19/3/